In the critically acclaimed novel Catch-22, a World War II pilot asks his squadron’s doctor about the sanity of another pilot, who continues to fly suicidal missions day after day with no fear of death.

The doctor confirms that the pilot must be insane and therefore should be grounded from any future missions. However, there is a catch. The pilot must ask to be grounded, but “anyone who wants out of combat isn’t really crazy, so I can’t ground him. That’s Catch-22.”

I was recently reminded of Catch-22 when a judge issued a ruling in our case against Toyota. In the case, we allege that a defect in the electronic throttle system and other part failures in most Toyota models cause sudden, unintended acceleration, or SUA, resulting in deadly car wrecks and crashes. We have asked the court to award damages to Toyota owners so that they can replace their defective vehicles and we seek an order requiring Toyota to install a fail-safe mechanism that can prevent SUA.

The judge’s decision uses reasoning right out of the novel. The trial court ruled that Toyota owners in Florida and New York may not sue Toyota until they have personally experienced SUA.

SUA often leads to serious injuries or even death. Like the pilot in Catch-22, the Court’s reasoning seems to be that drivers must continue to risk their lives driving a defective vehicle that is likely to accelerate suddenly out of control at any moment. Only after the car is wrecked and the driver injured can they challenge Toyota for selling them a defective product.

Now that’s a Catch-22.

Between 2000 and 2010, The National Highway Traffic Safety Administration (NHTSA) reported 89 deaths and 57 injuries attributed to unintended acceleration in Toyota vehicles. It’s difficult to understand Judge Selna’s decision in that context. How can we tell Toyota drivers in Florida and New York to roll the dice every time they drive their cars, risking serious injuries and even death? How can one say a car that has a risk of SUA is worth the same as a car that has a much lower risk and has better fail-safe features in the event SUA occurs?

Consider just one story of a driver who experienced SUA. On April 19, 2008, Guadalupe Alberto of Flint, Michigan, drove her 2005 Toyota Camry to work, a routine drive she had taken hundreds of times before.

She had never received a speeding ticket in all of her years of driving, but on that day, Ms. Alberto’s Toyota suddenly accelerated out of control, jumping a curb and flying through the air before crashing into a tree. She died instantly.

According to the Court’s reasoning, Ms. Alberto would have had no legal claim against Toyota until she experienced SUA. In other words, until it was too late.

For its part, Toyota has issued several recalls to “fix” the SUA problem, blaming sticky pedals and defective floor mats, but has denied that there is any defect in the electronic throttle system. All the while internally Toyota has replicated SUA in customers’ cars and acknowledged the cause as “ECM failure” or “ECU failure” or cause “unknown”.

A recent story on CNN’s Anderson Cooper lent additional proof to our theory. CNN’s investigators found an internal document, written in Japanese, which appears to note a SUA problem discovered in a test vehicle during pre-production trials. According to one translation commissioned by CNN, the document notes that the test vehicle experienced “sudden unintended acceleration due to wrong judgment made by the full speed range Adaptive Cruise Control (ACC) System.”

Even more alarming, Toyota did not share this document with the National Highway Traffic Safety Administration (NHTSA), who conducted an official investigation into SUA.

Beyond the immediate impact on Toyota owners in New York and Florida, the court’s decision will set an unfortunate precedent for similar cases in the future.

For instance, a video recently went viral on Youtube showing a 2010 Chrysler Jeep suddenly light on fire. In the video, the driver reacts quickly, swerving off the road to avoid running a red light.

The driver’s video explains that this is a known defect, but Chrysler has failed to respond to the problem. According to the precedent set by Judge Selna’s Toyota decision, Jeep owners who fear for their lives must wait for their cars to light on fire before they can take legal action against Chrysler.

In my view, the decision misses the entire point of our lawsuit. Car owners should not be forced to drive a ticking time bomb and wait until they are seriously injured in an accident. They deserve justice now, including compensation for the replacement of their defective and unsafe vehicles.

We intend to appeal this ruling and we will continue to fight for justice for Toyota owners throughout the United States. You can learn more about this litigation at www.hbsslaw.com/toyota.

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